Getting Temporarily Laid Off (No. 281)

From Clicklaw Wikibooks

Your employer says they have to lay you off or asks you to work fewer hours “until things pick up”. Learn your rights if you're temporarily laid off from work.

Understand your legal rights

Your legal rights depend on the type of worker you are

Your rights if you are temporarily laid off from work depend in part on the type of worker you are seen to be under the law.

A BC law, the Employment Standards Act, sets minimum standards for employers in how they treat workers. This law applies to “employees” — which covers most but not all workers in the province.

For example, it doesn’t apply to workers in industries regulated by the federal government, such as banks and airlines. Federal laws apply to them.

Nor does it apply to union workers. If you belong to a union, the collective agreement between your union and the employer has rules about how workers can be laid off or let go.

As well, this provincial law doesn’t apply to independent contractors. These are people who are self-employed, who run their own business. If you’re an independent contractor, your contracts with the people you work for control the situation.

Your employer can only lay you off in limited circumstances

A layoff is when your employer tells you that you must take an unpaid leave from work. An employer might lay you off because there is no work for you to do or not enough money to pay you.

Under the Employment Standards Act, employers do not have a general right to temporarily lay off employees. Temporary lay-offs are only legal if one of the following applies:

  • You have a written employment contract that allows for a layoff.
  • You work in an industry where layoffs are standard practice (for example, the logging industry).
  • You consent to the layoff.

Your employer must prove they had the right to lay you off for one of these reasons. Even then, the law limits the length of the layoff. We explain this shortly.

Outside of the situations above, if your employer lets you go temporarily, you have the same rights as someone who gets fired without just cause. That means your employer must give you notice or severance pay. See our guidance on if you are fired (no. 241).

The law limits the length of any layoff

If a temporary layoff is permitted under the law, an employer may temporarily lay you off for up to 13 weeks in a consecutive 20-week period.

If the layoff lasts more than 13 weeks in a 20-week period, it can no longer be called “temporary”. At that point, it’s as if you were fired without just cause on the first day of the layoff.

The 20-week period begins on the first day of the layoff. The 13-week period is exceeded on the first day of the 14th week of layoff. If your employer misses the deadline to recall you to work, you now have the same rights as someone who was fired without just cause. In particular, you have the right to notice, severance pay, or some combination of the two. See our guidance on if you are fired.

(Your employer can apply to Employment Standards BC to extend the 13-week period.)

If your employer reduces your hours

Under the Employment Standards Act, if your employer lowers your weekly hours so that you’re earning less than half of your regular wage, this counts as a week’s layoff. That is, it counts as one week towards the 13-week “temporary layoff” period.

Common questions

My employer laid me off. What should I do?

If your contract doesn’t provide for temporary layoffs — and you don’t work in an industry where they’re standard practice — your employer can’t temporarily lay you off. It’s against the law. Let your employer know right away (in writing) that you don’t consent to being laid off.

If your employer follows through with the layoff, your rights are affected. You’re now being fired without just cause. (See our guidance on if you are fired.) That means you can start a claim against your employer to collect severance pay.

Download the self-help kit from the BC Employment Standards Branch. It contains a step-by-step guide on how to bring a claim against your employer. It includes a request for payment form together with a letter you submit to your employer.

If you aren’t able to solve the problem using the self-help kit, you can file a complaint with the Employment Standards Branch. You must file your complaint within six months of the day your employment ended. For more on the process, you can call the Branch toll-free at 1-800-663-3316, or visit gov.bc.ca/employmentstandards.

What if my contract says I can be laid off?

In this case your employer is legally allowed to lay you off or reduce your hours of work. However, unless your contract says otherwise, the law sets a limit on how long your layoff can be, as explained above.

There may be other terms and conditions attached. For example, your contract may state that your employer has to pay you a certain percentage of your regular wage while you’re laid off. It may also say you’re allowed to look for other work in your down time. However, you should always be ready to return to work during the layoff period. If you refuse work, you weaken your claim. The employer may claim that you quit.

Get help

If you’re laid off

The Employment Standards Branch deals with claims against an employer relating to temporary layoffs.

Toll-free: 1-800-663-3316
Web: gov.bc.ca/employmentstandards

Employment and Social Development Canada can help you bring a claim against your employer if you work in a federally-regulated industry.

Toll-free: 1-800-641-4049
Web: esdc.gc.ca


[updated October 2017]

The above was last reviewed for legal accuracy by Jennifer Hagen, Employment Standards Branch.



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